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Silvero v. Fox Television Studios, Inc., et al.

IP/Entertainment Case Law Updates August 13, 2015

Los Angeles Superior Court grants Fox Television’s anti-SLAPP motion to strike claims brought by actor who portrayed mobster characters, holding that cartoon character in “The Simpsons” animated television series contains significant transformative elements, and that value of “The Simpsons” does not derive primarily from plaintiff’s fame.

Frank Silvero, an actor who played the character Frankie Carbone in the film “Goodfellas” and other similar mobster characters during his career, filed suit against Fox Television alleging that the writers of the animated television show “The Simpsons” improperly used his physical likeness as the basis for the character of “Louie.” Louie has appeared in 15 episodes of the “The Simpsons,” as well as a Simpsons movie, video game and mobile video game. Silvero alleged that in 1989 he lived across the hall from two of the writers of “The Simpsons” and encountered them daily. Silvero further alleged that a producer of the show told him that the writers used him as a source for the Louie character. Silvero asserted common-law claims of infringement of the right of publicity, misappropriation of name and/or likeness, misappropriation of ideas, intentional interference with prospective advantage and unjust enrichment. Fox filed a motion to strike Silvero’s complaint under California’s anti-SLAPP law.

In a tentative opinion that was subsequently adopted after a hearing, the state court held that the complaint fell within the scope of the anti-SLAPP statute. The state court rejected Fox’s argument that Silvero’s claims were preempted by federal copyright law, as Silvero’s alleged misappropriation of the physical appearance and personality that he brought to the numerous mobster characters that he played over the years, not infringement of the “Goodfellas” Carbone character specifically.

However, the court concluded that the First Amendment protected Fox’s use of the Louie character, and dismissed Silvero’s claims for infringement of right of publicity and misappropriation of name or likeness. Under Comedy III Productions, Inc. v. Gary Suderup, Inc., in which the California Supreme Court held that the First Amendment may be raised as an affirmative defense to a right of publicity claim where the work contains significant transformative elements or where the value of the work does not derive primarily from the celebrity’s fame, the court found that the Louie character was only a minor character in “The Simpsons” show, and that the value of the show does not derive primarily from Silvero’s fame as a supporting character. Even if Louie had been patterned on Silvero, the court noted that he is “distorted for the purposes of lampoon, parody and caricature” as he is yellow and lacks eyebrows. Further, many of the characteristics Silvero alleged were misappropriated are general to all depictions of Mafia-type characters.

The court also rejected Silvero’s claim for misappropriation of ideas, as Silvero presented only generalized interactions with writers, animators, illustrators or producers of “The Simpsons” and failed to offer specific facts that might establish the existence of a binding agreement.

The court dismissed Silvero’s claim for intentional interference with prospective advantage, finding that Silvero failed to provide evidence of the existence of any prospective business relationship with the probability of future economic rewards, knowledge by the defendant of the existence of that relationship or intentional acts designed to disrupt the relationship. The court found that there was no evidence that defendants had engaged in any wrongful conduct and that Silvero failed to identify any relationship that had been disrupted by the appearance of Louie on “The Simpsons.”

Lastly, the court rejected Silvero’s claim for unjust enrichment because he failed to submit evidence of any special relationship between the parties whereby Fox obtained and used any information or ideas for its own profit. The court held that Fox was entitled to an award of its attorneys’ fees and costs.